Taylor v Police [2012] NZHC 1096 (21 May 2012)

Last Updated: 26 August 2012

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2012-425-000008-11 [2012] NZHC 1096

DEREK JOHN TAYLOR

Appellant

v

POLICE

_Respondent

Hearing: 21 May 2012

Counsel: RGR Eagles for Appellant

MJ Thomas and R Donnelly for Respondent

Judgment: 21 May 2012

_{JUDGMENT OF WHATA J}

[1] Mr Taylor is a recidivist offender. He has 21 burglary convictions and 213 other dishonesty convictions, prior to the present charges. In the period September

2011 to December 2011, the district of Queenstown Lakes became a focal point for

_{Mr Taylor’s unlawful activity:}

In September 2011, he unlawfully entered into an enclosed yard.

In November and December 2011 he went onto another property and removed copper piping and pressure valves valued at $400.

TAYLOR V POLICE HC INV CRI 2012-425-000008-11 [21 May 2012]

On 20 November 2011 he went to the Queenstown Bible Centre, posed as a builder, claimed a cash machine had taken his card and

_{asked for money. He was given $100.}

Then on 30 December 2011, the appellant entered a members only area of the Lakes Leisure Centre gym, went to open lockers and

_{removed a wallet and a purse.}

[2] In the Court below, the Judge considered that the burglary charge was the lead charge. The Judge applied a starting point of 12 months and uplifted that by two and a half years to three and a half years. The uplift reflected what he considered to be aggravating features, including that Mr Taylor was on parole at the time of all offending, released on bail 24 hours before the burglary, the number and seriousness of the previous burglary convictions.

[3] A discount of 25% was then allowed for the appellant’s guilty plea with the final sentence of two and a half years. Other sentences were relatively minor with periods of one month, two months, and two months respectively of imprisonment, all to be served concurrently.

[4] Mr Taylor now appeals sentence.

[5] Mr Eagles, for Mr Taylor, contends that the uplift of some 250% was manifestly excessive. He says that the following aspects are significant when considering the end sentence including:

(a) Mr Taylor was equivocating on whether to plead guilty to the burglary charge, on the basis that access to the leisure centre was available to the public and he did not enter a secure part of the premises. Prior to entering the guilty plea he sought a sentencing indication whereupon the Judge stated:

... I would have thought a starting point of 12 months was warranted for burglary during the daytime. There would need to be a significant uplift for the aggravating feature being his 21 previous burglary convictions and 213 other

dishonesty convictions and the mitigating factor would be 25 percent reduction in the penalty for the early guilty plea.

Following that indication Mr Taylor entered a plea of guilty to the burglary charge.

(b) Mr Eagles submits that an uplift of 250% or two and a half years on a starting point of one year is more than significant and could not have been reasonably foreseen by defence counsel or by Mr Taylor at the time he made his election.

(c) If the starting point is established by reference to the offending alone, Mr Eagles submitted that the amount stolen (less than $500) is relatively minor offending and a low level burglary likely to attract no more than six months as a starting point. Even allowing a substantial uplift the end sentence would be substantially less than the two and a half years imposed on Mr Taylor.

(d) While Mr Eagles accepts that Mr Taylor is a recidivist offender, he is more properly characterised as a nuisance offender rather than a professional burglar. His prior convictions are low level scale, with many of them relating to items stolen of less than $500 in value.

(e) Mr Eagles submits that the uplift of two and a half years was manifestly excessive by reference to leading cases, such as R v Columbus.1

[6] Ms Thomas for the Crown accepts that the uplift of two and a half years’ imprisonment was stern. However, Ms Thomas submits that the critical issue is whether the end sentence was manifestly excessive. She says that it was not:

(a) The 12 months’ starting point was well within the range available to the District Court Judge, if not lenient.

1 R v Columbus [2008] 3 NZCA 192

(b) There were significant aggravating factors, including the fact that the appellant was on parole at the time of the offending and had only just been released on bail. There are then the significant number of prior burglary convictions and other related dishonesty offences.

(c) It was available to the District Court to adopt a cumulative sentence approach to the various combined offending with the result that on the totality of the separate incidents of offending, the end sentence was not disproportionate or manifestly excessive.

The Judge’s reasons

[7] The Judge adopted an orthodox framework for the assessment of sentence. He commenced with a starting point that was a term of imprisonment appropriate to reflect the wrongdoing of the offending and the circumstances of it. He then took into account aggravating and mitigating factors. He considered that a starting point of one year imprisonment was appropriate. In terms of uplift he took into account that the defendant was on parole at the time of the offences, had been released on bail less than 24 hours prior to the offending and has a number of previous relevant convictions. The Judge resolved that the aggravating factors increased the sentence where a term of three and a half years was appropriate. An allowance of 25% was made for the early guilty plea reducing the sentence to two years and six months.

Assessment

[8] The relevant threshold is whether the sentence is manifestly excessive. At first blush a sentence of two and half years, against a backdrop of recidivist offending, is not obviously wrong. But as Ms Thomas rightly conceded, an uplift of

250% or two and a half years is stern. Severe is another adjective that comes to mind.

[9] In order to bring some objectivity to my assessment, I will apply the R v Taueki2 framework and leading authority,3 in particular R v Columbus cited by Mr Eagles.

[10] First, a sentence of one year relating to the circumstances of the offending is not obviously excessive. Indeed, the Court of Appeal in R v Columbus dealing with a relatively minor burglary – forced open garage door and took bike and toolbox – applied a starting point of one year. While there was no “forcing” by Mr Taylor, his surreptitious entry into areas where members of the centre might expect privacy and security is very concerning.

[11] I then turn to the aggravating features personal to Mr Taylor. There are four separate factors to consider:

(a) Mr Taylor was on parole while offending; (b) Mr Taylor was on bail while offending; (c) Mr Taylor is a recidivist offender; and

(d) The burglary was one of four types of offending over a four month period.

[12] In R v Columbus the offender had 89 previous convictions of which 13 were for burglary and 34 for property related offences. The offender in that case also was offending while on bail. The burglary was also one of multiple offences for which the offender was convicted. Together this combination resulted in an uplift of one and a half years or 150% on the starting point. Plainly, that is not a “tariff” for uplifts. But it would be remiss on my part to disregard the approach taken by the Court of Appeal in Columbus to uplift, given the similarity of the circumstances to the present case. In doing so, it is readily evident that Mr Taylor’s aggravating

_{factors are, quantitatively and qualitatively worse. Numerically he has more}

2 _{R v Taueki [2005] 3 NZLR 372}

3 Terore v Police HC Whangarei, CRI 2009-088-003650, 13 December 2010; Snowden v Police HC Hamilton CRI 2010-419-000052, 15 July 2010; Senior v Police (2000) 18 CRNZ 340 (HC); R v Southon [2003] NZCA 9; (2003) 20 CRNZ 104;

convictions. Substantively, the fact that he was on parole at the time of the offending further emphasises the contumelious disregard Mr Taylor has for the property and privacy rights of persons in his community. In short, Mr Taylor’s personal circumstances are significantly more aggravating than those of Mr Columbus.

[13] Accordingly, approaching this assessment as objectively as I can in light of authority which if not directly binding on me is highly persuasive, an uplift of two years would appear to properly reflect the combination of factors present in this case. The 25% discount for early guilty plea is entirely consistent with authorities and therefore appropriate. Thus an end sentence of two years and three months would be, in my view, a fair result.

[14] Returning then to the essential issue: is an end sentence of two years six months manifestly excessive? I have come to the view that while the sentence was excessive, it was not manifestly so. The percentage differences noted by Mr Eagles are deceiving. I must be concerned with whether there has been an error of manifest substance. Mr Taylor plainly cares little for the sanctions imposed by the judicial system and even less for the property rights, privacy expectations and security of people within his community. In those circumstances, the difference between my assessment and the Judge’s is not so great as to warrant a different result.

[15] The appeal is therefore dismissed.

Addendum

[16] Mr Eagles has raised a concern about the effect of the sentencing indication. An uplift of 250% on a starting point of one year might have attracted a stronger adjective than “significant” as I have indicated. But it was available to counsel to seek clarity from the Court as to what was meant by significant. In addition, counsel

properly appraised of the authorities, including R v Columbus should have expected an uplift in the order of 18 months to two years, including the potential for the application of the totality or cumulative sentencing principles. In those circumstances, I am not satisfied that the sentencing indication ought to affect my view on whether or not the uplift was manifestly excessive.

Solicitors:

Eagles Eagles and Redpath, Invercargill, for Appellant

Preston Russell Law, Invercargill, for Respondent